## Facts

- Fred Markley and Frank Whitman were high-school students in Buchanan, Michigan.
- Students engaged in a “rush” game in which a line of students pushed forward until the student at the front struck an unsuspecting target.
- On February 7, 1890, Markley was walking home on a sidewalk when he was selected as the target without notice.
- Whitman, positioned immediately behind Markley in the line, was pushed forward and then forcefully rushed into Markley, striking him between the shoulders and nearly throwing him to the ground.
- Markley suffered severe injuries, including loss of voice above a whisper and neck injury requiring months of medical treatment.
- Markley sued Whitman for assault and battery seeking damages.

## Issues

1. Whether an intentional, forceful push during a school “rush” game constitutes an actionable battery when it causes serious injury, even without intent to cause that degree of harm.
2. Whether the playful/customary nature of the game and the parties’ schoolmate relationship relieve the defendant of liability.
3. Whether jury instructions on intent, accident, consent/participation, and contributory fault were erroneous.

## Decision

- The Michigan Supreme Court affirmed a $2,500 judgment for Markley on the jury’s verdict.
- The court held the evidence permitted a finding of an actionable battery based on the intentional, violent contact.
- The court rejected the argument that the event was a nonactionable “accident” as a matter of law where the contact resulted from voluntary participation in the rush and an intentional application of force.
- The court found no reversible error in instructions requiring the jury to consider whether Markley consented to or participated in the game, or otherwise contributed to the injury.

## Legal Principles

- An intentional application of force to another’s person may constitute battery even if the actor did not intend the particular injury that results.
- “Horseplay” or sportive context does not immunize intentional, harmful or offensive contact; liability turns on whether the contact was wrongful and unconsented to.
- Consent or participation in the activity, and contributory fault by the plaintiff, can bar recovery; these are ordinarily fact questions for the jury when supported by evidence.
- An occurrence is not a legally unavoidable “accident” when the harmful contact arises from an intentional act, even if the extent of harm was unexpected.

## Conclusion

The court sustained the plaintiff’s battery recovery for serious injury caused by a forceful, intentional push during a school rush game, holding that playful context and lack of intent to cause the specific harm did not defeat liability where the jury could find the contact wrongful and not consented to.


Markley v. Whitman, 95 Mich. 236, 54 N.W. 763 (1893)